Benissa v Minister for Immigration and Border Protection

In Benissa v Minister for Immigration and Border Protection, the applicant sought to appeal against a decision of the Federal Circuit Court which dismissed his application for judicial review of a decision by the Migration Review Tribunal (the Tribunal). The applicant argued that the Tribunal did not have jurisdiction to decide the case because he had been granted an extension of time to pay the prescribed application fee and that the Tribunal should have given him an opportunity to make submissions about whether it had jurisdiction. The court was required to decide whether the Tribunal had jurisdiction and whether section 360 of the Migration Act 1958 (Cth) required the Tribunal to give the applicant an opportunity to make submissions about whether it had jurisdiction.

The court held that the Tribunal did not have jurisdiction because the applicant had not paid the prescribed fee within the required time period. The court found that the Tribunal was not required by section 360 of the Migration Act to give the applicant an opportunity to make submissions about whether it had jurisdiction. The court held that section 360 required the Tribunal’s invitation to the applicant to appear to give evidence and present arguments relating to the issues arising in relation to the decision under review. Submissions concerning whether the Tribunal had jurisdiction were not matters that "related to" the issues arising from the decision by the delegate of the Minister which would be under review if the Tribunal had jurisdiction.

The application for leave to appeal was dismissed. The court ordered that the applicant pay the costs of the first respondent to be taxed if not agreed.